Published
US v. Cruz-Rodriguez, No. 07-4083, 6/24/09 - Defendant charged with illegal reentry waived his claim that the evidence and instruction impermissibly expanded the scope of the indictment, so his conviction was affirmed. The indictment specified the date of his last deportation. Defendant entered into a stipulation read to the jury that he had been deported four separate times, including the one named in the indictment. He also approved of the jury instruction that the government only had to prove that he had been previously deported. His defense was based on some kind of claim to citizenship, but the opinion does not elaborate on the factual basis for this defense.
Unpublished
US v. Swenson, No. 07-8097, 6/25/09 - Convictions for possession and attempted distribution of child pornography affirmed; conviction for receiving a single image reversed in light of agreement by the government that the then-existing version of 18 USC § 2252A required actual proof that the image had traveled in interstate commerce. This is another Limewire computer case in which defendant had over 2,000 photos and videos on his hard drive, some of which originated in Argentina.
US v. Ekstrum, No. 09-3039, 6/25/09 - Getting arrested three time for drunk driving (one included possession of cocaine) while on supervised release pending trial on a charge of impersonating an IRS agent justified two-year prison term, even though guidelines range was 0-6 months, and government agreed in plea agreement to recommend the low end.
US v. Reyes, No. 08-3234, 6/24/09 - Low end guidelines range sentence for possession with intent to distribute cocaine affirmed. Cop found $8,450 dollars on defendant’s person following his arrest for driving on a suspended license. He told the cop that he made the money from rap performances. Family members who came to the scene confirmed that he was a rapper, but nobody could name a performance for which he had been paid. Later, based on information from his girlfriend, cops got a warrant to search his house, where they found the cocaine and $10,300. At sentencing, the court converted all of the case into a drug quantity and calculated his guidelines range accordingly. The appeal focused on the $8,450. The 10th held that there was no plain error by the district court in failing to explain why it rejected the rapper theory, the evidence supported the finding that the cash was the proceeds of drug dealing, and the sentence was substantively reasonable.
US v. Doles, No. 08-8065, 6/24/09 - Owner of “Hip Hop Hippies” store was convicted by a jury of unlawfully selling or offering for sale drug paraphernalia, and the 10th affirmed. It held 1) no abuse of discretion in excluding evidence of prior acquittal on similar charge by state jury because this was irrelevant and improper under Rule 403; 2) no abuse of discretion in excluding testimony that defendant had told a cop that his prior counsel had advised him that his activities were legal, because the government only had to prove that defendant had knowledge that his products were likely to be used with illegal drugs; 3) admission of cop’s testimony that he heard defendant answer the phone at his store with the greeting “4-20" was okay because that’s how pot smokers identify each other, according to the cop; and 4) admission of evidence that a store employee possessed a grinder containing pot was also all right because defendant sold identical grinders, which tended to establish the knowledge element.
US v. Jackson, No. 07-2212, 6/24/09 - Conviction following jury trial for possession with intent to distribute crack affirmed. Defendant’s parole officer and cops searched the house where defendant was staying, found the crack and arrested him. Four days later, defendant’s distant relative, with whom he was very close, signed an affidavit prepared by defendant’s lawyer in which he claimed ownership of the crack. Cops interviewed the relative four months later and he eventually recanted, allegedly after they told him that they’re leaving either with him or the truth. Two months after that, the relative went back to the original story in a videotaped interview at the office of defendant’s counsel. Prior to trial, defendant filed a notice of intent to use the affidavit and videotape at trial pursuant to Rules 804(b)(3) and 807. The district court concluded that the affidavit and videotape were inadmissible hearsay and did not satisfy the requirements of either rule because defendant failed to provide sufficient corroboration of their trustworthiness and because they did not exculpate defendant. Defendant then subpoenaed relative. At the start of the trial, relative’s attorney informed the court that his client would plead the fifth. The court then placed relative under oath and made sure he understood his Fifth Amendment rights and that testifying could result in his own prosecution and punishment. Defendant objected to this procedure on the ground that it was coercive and interfered with relative’s right to decide for himself whether to testify. The court allowed relative to invoke his right not to testify.
Held: Defendant was not denied his right to present a defense. 1) The court properly allowed relative to invoke his Fifth Amendment privilege because his statements in the affidavit and videotape did not constitute waivers of that privilege and his trial testimony could definitely tend to incriminate him; 2) the government did not interfere with relative’s decision not to testify because defendant was relying on his own lawyer’s advice; 3) there was no abuse of discretion in excluding the affidavit and videotape because there was no corroboration of relative’s inculpatory statements, as required by Rule 804(b)(3), and there were insufficient guarantees of their trustworthiness, as required by 807. Plus, they did not exculpate defendant, who could still have possessed the drugs and who was also charged as an aider and abetter.
US v. Cruz-Rodriguez, No. 07-4083, 6/24/09 - Defendant charged with illegal reentry waived his claim that the evidence and instruction impermissibly expanded the scope of the indictment, so his conviction was affirmed. The indictment specified the date of his last deportation. Defendant entered into a stipulation read to the jury that he had been deported four separate times, including the one named in the indictment. He also approved of the jury instruction that the government only had to prove that he had been previously deported. His defense was based on some kind of claim to citizenship, but the opinion does not elaborate on the factual basis for this defense.
Unpublished
US v. Swenson, No. 07-8097, 6/25/09 - Convictions for possession and attempted distribution of child pornography affirmed; conviction for receiving a single image reversed in light of agreement by the government that the then-existing version of 18 USC § 2252A required actual proof that the image had traveled in interstate commerce. This is another Limewire computer case in which defendant had over 2,000 photos and videos on his hard drive, some of which originated in Argentina.
US v. Ekstrum, No. 09-3039, 6/25/09 - Getting arrested three time for drunk driving (one included possession of cocaine) while on supervised release pending trial on a charge of impersonating an IRS agent justified two-year prison term, even though guidelines range was 0-6 months, and government agreed in plea agreement to recommend the low end.
US v. Reyes, No. 08-3234, 6/24/09 - Low end guidelines range sentence for possession with intent to distribute cocaine affirmed. Cop found $8,450 dollars on defendant’s person following his arrest for driving on a suspended license. He told the cop that he made the money from rap performances. Family members who came to the scene confirmed that he was a rapper, but nobody could name a performance for which he had been paid. Later, based on information from his girlfriend, cops got a warrant to search his house, where they found the cocaine and $10,300. At sentencing, the court converted all of the case into a drug quantity and calculated his guidelines range accordingly. The appeal focused on the $8,450. The 10th held that there was no plain error by the district court in failing to explain why it rejected the rapper theory, the evidence supported the finding that the cash was the proceeds of drug dealing, and the sentence was substantively reasonable.
US v. Doles, No. 08-8065, 6/24/09 - Owner of “Hip Hop Hippies” store was convicted by a jury of unlawfully selling or offering for sale drug paraphernalia, and the 10th affirmed. It held 1) no abuse of discretion in excluding evidence of prior acquittal on similar charge by state jury because this was irrelevant and improper under Rule 403; 2) no abuse of discretion in excluding testimony that defendant had told a cop that his prior counsel had advised him that his activities were legal, because the government only had to prove that defendant had knowledge that his products were likely to be used with illegal drugs; 3) admission of cop’s testimony that he heard defendant answer the phone at his store with the greeting “4-20" was okay because that’s how pot smokers identify each other, according to the cop; and 4) admission of evidence that a store employee possessed a grinder containing pot was also all right because defendant sold identical grinders, which tended to establish the knowledge element.
US v. Jackson, No. 07-2212, 6/24/09 - Conviction following jury trial for possession with intent to distribute crack affirmed. Defendant’s parole officer and cops searched the house where defendant was staying, found the crack and arrested him. Four days later, defendant’s distant relative, with whom he was very close, signed an affidavit prepared by defendant’s lawyer in which he claimed ownership of the crack. Cops interviewed the relative four months later and he eventually recanted, allegedly after they told him that they’re leaving either with him or the truth. Two months after that, the relative went back to the original story in a videotaped interview at the office of defendant’s counsel. Prior to trial, defendant filed a notice of intent to use the affidavit and videotape at trial pursuant to Rules 804(b)(3) and 807. The district court concluded that the affidavit and videotape were inadmissible hearsay and did not satisfy the requirements of either rule because defendant failed to provide sufficient corroboration of their trustworthiness and because they did not exculpate defendant. Defendant then subpoenaed relative. At the start of the trial, relative’s attorney informed the court that his client would plead the fifth. The court then placed relative under oath and made sure he understood his Fifth Amendment rights and that testifying could result in his own prosecution and punishment. Defendant objected to this procedure on the ground that it was coercive and interfered with relative’s right to decide for himself whether to testify. The court allowed relative to invoke his right not to testify.
Held: Defendant was not denied his right to present a defense. 1) The court properly allowed relative to invoke his Fifth Amendment privilege because his statements in the affidavit and videotape did not constitute waivers of that privilege and his trial testimony could definitely tend to incriminate him; 2) the government did not interfere with relative’s decision not to testify because defendant was relying on his own lawyer’s advice; 3) there was no abuse of discretion in excluding the affidavit and videotape because there was no corroboration of relative’s inculpatory statements, as required by Rule 804(b)(3), and there were insufficient guarantees of their trustworthiness, as required by 807. Plus, they did not exculpate defendant, who could still have possessed the drugs and who was also charged as an aider and abetter.
posted by Anonymous at 9:12 AM
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